AuthorAshley S. Lipson
Without enforcement,
demands are nothing but
empty, hollow threats.
Chapter 17
§17.10 The Basics
§17.11 Examination of Responses
§17.12 Using 37-Caliber Ordinance
§17.13 Other Enforcement Weaponry
§17.14 Enforcement in State Courts
§17.20 Follow-Up
§17.30 Appeals
§17.40 The Forms That You Need
Form 17.1 Motion to Exclude Undisclosed Witness
Form 17.2 Motion for Continuance (Due to Non-Disclosure)
Form 17.3 Skeletal Motion for Summary Judgment
Form 17.4 Motion for Costs and Attorney Fees
17-797 enFOrcement §17.12
1 Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003) delivered this eloquent statement: “When discovery
rights are trampled, prejudice must be presumed.”
2 Tolliver v. Federal Republic of Nigeria, 265 F.Supp.2d 873 (W.D.Mich. 2003). The failure to timely raise issues of non-compliance under
discovery sanctions rules could constitute a waiver of such rights.
Mikeron, Inc. v. Exxon Co., U.S.A., 264 F.Supp.2d 268 (D.Md. 2003). A plaintiff who, in nearly two years, had never moved to compel
depositions or responses to interrogatories or document requests could not do so for the first time at summary judgment.
Once a motion has been filed, the enemy may not necessarily be able to avoid its consequences, even if he or she files a late response to
your discovery requests. Being first on the draw does, therefore, have its advantages. See Greenbriar Homes, Inc. v. Builders Insurance, 615
S.E.2d 191, 273 Ga.App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not
preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless,
required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.
3 See §17.14.
3.1 Smith v. Murphy, 994 N.E.2d 617 (Ill.App., 2013). The decision of whether or not to impose sanctions for a party’s failure to comply with
the rules or court orders on discovery lies within the sound discretion of the trial court, and trial court’s imposition of sanctions will not be
reversed absent an abuse of discretion.
For additional discussion concerning the court’s discretion in discovery matters, see supra, §2.11.
4 All but a few states have provisions that are substantially similar to Rule 37. Those that differ are: California, New York, Connecticut (see
Connecticut Superior Court Rule §231), Maryland (see Maryland’s Rule 37), Missouri, New Hampshire, Pennsylvania (see Pennsylvania
Rule 4019), Texas (see Texas Rule 215).
The subject matter of this chapter is important
enough to be considered throughout the entire treatise.
In fact, all of the weapons chapters (5 through 10) and
the material relating to subpoenas (Chapter 11) have
their own separate sections dealing with enforcement.
This particular chapter is directed at the more generic
matters relating to enforcement, as opposed to those that
are weapon-specific.
For lay persons, the stress of discovery normally
begins as soon as they are requested to provide personal
information to an enemy whom they are suing or who is
suing them. Stress among lawyers is, however, a different
matter. For us, submitting and responding to discovery
requests is merely a normal part of our basic professional
lives. Initially, everything is normal and cordial. Things
don’t seem to get personal until you tell the opposing
attorney that his or her client’s responses are not going
to suffice. From there, things always seem to escalate.
Therefore, restraint, politeness and limited accommoda-
tion can be very important at this sensitive juncture.
§17.10 The Basics
Don’t ever launch a discovery weapon unless you
are prepared to enforce it. It’s difficult to overstate the
importance of this rule. Often, ignored or unenforced dis-
covery can be worse than no discovery at all. Permitting
the opposition to ignore your discovery requests with
impunity is unforgivable.1 The court has every right to
assume that your failure to voice a timely objection or
file a proper motion means that you have exercised your
discovery rights and are satisfied with the results. And
that, of course, can place you in a defensive posture with
respect to summary disposition, regardless of whether
you are a plaintiff or defendant. Therefore, if the enemy
fails to provide a complete response, you must act and
act quickly.2 Every jurisdiction’s set of discovery rules
will provide for enforcement. As is the case with most
states, the federal rules form the model.3 And, regard-
less of which court you are in (state or federal), the rules
granting to the court broad discretion for discovery mat-
ters and applicable sanctions are similar.3.1
§17.11 Examination of Responses
Expect resistance. If your attack is effective and
you are doing your job properly, you should expect the
enemy to make a counter-move or offer some form of
resistance. You should never expect your opposition to
respond totally and fully comply without some form of
coercion. A good enemy will always test your metal.
Too often, I have witnessed defeatist attitudes, particu-
larly among young associates, to the effect of “Why bother
to spend time with interrogatories or depositions? They
(i.e., the opposing party) are just going to object or give us
a bunch of bull.” The proper attitude is one of acceptance;
i.e., you should accept the fact that the discovery campaign
only begins with the request. Then you should delight in
enemy resistance. After all, if the enemy merely surrenders,
you really can’t drag him before the judge, seek sanctions,
or smear him into a bloody pulp. So, if the enemy resists,
rejoice and go directly to the next Section.
§17.12 Using 37-Caliber Ordinance
Enforcement is mine, sayeth Rule 37. That particular
rule has provided a ubiquitous model for the enforcement
of discovery, in general.4 According to the United States

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